Lemire v. California Department of Corrections & Rehabilitation , 726 F.3d 1062 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERIE LEMIRE , Individually and as No. 11-15475
personal representative for the Estate
of Robert St. Jovite; Gerard Charles D.C. No.
St. Jovite and Nicole St. Jovite; 2:08-cv-00455-
NICOLE ST . JOVITE; GERARD GEB-EFB
CHARLES ST . JOVITE; ESTATE OF
ROBERT ST . JOVITE, OPINION
Plaintiffs-Appellants,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION ; ARNOLD
SCHWARZENEGGER , Individually and
in his official capacity as Governor
of the State of California; JAMES E.
TILTON , Individually and in his
official capacity as Secretary of CA
Department of Corrections and
Rehabilitation; TOM L. CARY ,
Individually and in his official
capacity as Warden of CSP-Solano;
D. K. SISTO , Individually and in his
official capacity as Warden of CSP-
Solano; CAHOON , Individually and
in her official capacity as
Correctional Officer; ALCARAZ,
Individually and in his official
2 LEMIRE V . CAL. DEP’T OF CORR.
capacity as Correctional Officer;
WADE, Individually and in his
official capacity as Correctional
Officer; ORRICK, Individually and in
her official capacity as Correctional
Officer; MARTINEZ, Individually and
in her official capacity as
Correctional Officer; GORDON
WONG , Individually and in his
official capacity; HAK, MTA,
Individually and in her official
capacity; ALVARA C. TRAQUINA ,
M.D., Individually and in his official
capacity as Chief Medical
Officer/Health Care Manager;
NORIEGA , Individually and in his
official capacity; DUSAY , DR.,
Individually and in his official
capacity; NEURING , Individually and
in his official capacity; DODIE
HICKS, Senior RN; C. HOLLIDAY ,
Correctional Officer, Badge No.
70808; JAIME CHUA , Correctional
Officer, Badge No. 55696,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
LEMIRE V . CAL. DEP’T OF CORR. 3
Argued and Submitted
May 15, 2012—San Francisco, California
Filed August 7, 2013
Before: Stephen Reinhardt, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Clifton
SUMMARY*
Prisoner Civil Rights
The panel affirmed in part and vacated in part the district
court’s summary judgment and remanded in an action arising
from the apparent suicide of an inmate in the California
prison system.
The panel held that the district court erred in granting
summary judgment with respect to plaintiffs’ claims that
defendants Warden Dennis Sisto and Captain James Neuhring
impermissibly convened a staff meeting that resulted in the
absence of all floor officers from the building where the
inmate was incarcerated for a period of as long as three and
a half hours because those claims presented triable issues of
fact. The panel held that a jury could conclude, on the basis
of the factual record before the district court, that the
complete withdrawal of all supervision created an
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 LEMIRE V . CAL. DEP’T OF CORR.
unconstitutional risk of harm to the mentally ill inmates, that
Sisto and Neuhring were responsible for, and deliberately
indifferent to, this lack of supervision and that the lack of
floor staff was an actual and proximate cause of the inmate’s
death. The panel affirmed, however, the grant of summary
judgment on the inadequate staffing claim with respect to
defendants Lieutenant Gordon Wong, Sergeant Gale
Martinez, and Sergeant Cheryl Orrick.
The panel also held that the district court erred in granting
summary judgment with respect to plaintiffs’ claims based on
the failure to administer CPR by defendants Officer Rebecca
Cahoon and Officer Chris Holliday. The panel concluded that
there was a triable issue of fact as to whether defendants
Cahoon and Holliday were deliberately indifferent to the
inmate’s potentially serious medical need when they first
arrived at his cell. The panel affirmed with respect to
plaintiffs’ claims for failure to provide proper medical
treatment with respect to the remaining defendants. The
panel also affirmed with respect to the failure to train claims.
COUNSEL
Geri Lynn Green, Attorney, San Francisco, California, for
Plaintiffs-Appellants.
Kamala D. Harris, Attorney General of California, Jonathan
L. Wolff, Senior Assistant Attorney General, Thomas S.
Patterson, Supervising Deputy Attorney General, Diana
Esquivel (argued), Deputy Attorney General, Sacramento,
California, for Defendants-Appellees.
LEMIRE V . CAL. DEP’T OF CORR. 5
OPINION
CLIFTON, Circuit Judge:
This action under 42 U.S.C. § 1983 arises from the
apparent suicide of an inmate in the California prison system,
Robert St. Jovite. The estate, parents, and daughter of the
deceased prisoner seek to recover damages for alleged
violations of the Eighth Amendment, based on St. Jovite’s
right to be free from cruel and unusual punishment, and the
Fourteenth Amendment, based on the family’s substantive
due process right of familial association. These claims are
predicated on allegations that members of the custodial,
medical, and supervisory staff at California State Prison at
Solano (“CSP-Solano”) failed to protect and provide adequate
medical care by failing to (1) ensure the presence of floor
officers to provide sufficient supervision of the inmates, (2)
administer CPR immediately after St. Jovite was found
unconscious in his cell, and (3) sufficiently train the prison
staff in proper CPR procedure. The district court granted
summary judgment to Defendants on all claims.
We hold that the district court erred in granting summary
judgment with respect to Plaintiffs’ claims that Defendants
Warden Dennis Sisto and Captain James Neuhring
impermissibly convened a staff meeting that resulted in the
absence of all floor officers from the building where St.
Jovite was incarcerated for a period of as long as three and a
half hours because those claims present triable issues of fact.
A jury could conclude, on the basis of the factual record
before the district court, that the complete withdrawal of all
supervision created an unconstitutional risk of harm to the
mentally ill inmates in St. Jovite’s building and that Sisto and
Neuhring were responsible for, and deliberately indifferent
6 LEMIRE V . CAL. DEP’T OF CORR.
to, this lack of supervision. The jury could also conclude that
the lack of floor staff was an actual and proximate cause of
St. Jovite’s death. We affirm, however, the grant of summary
judgment on the inadequate staffing claim with respect to
Defendants Lieutenant Gordon Wong, Sergeant Gale
Martinez, and Sergeant Cheryl Orrick.
We also hold that the district court erred in granting
summary judgment with respect to Plaintiffs’ claims based on
the failure to administer CPR by Defendants Officer Rebecca
Cahoon and Officer Chris Holliday. We conclude that there
is a triable issue of fact as to whether Defendants Cahoon and
Holliday were deliberately indifferent to St. Jovite’s
potentially serious medical need when they first arrived at his
cell. We affirm with respect to Plaintiffs’ claims for failure to
provide proper medical treatment with respect to the
remaining defendants. We also affirm with respect to the
failure to train claims.
Accordingly, we vacate the summary judgment as to the
claims against Defendants Sisto and Neuhring for
withdrawing all floor officers from St. Jovite’s building, and
as to the claims against Defendants Cahoon and Holliday for
failure to provide CPR and remand for further proceedings
with respect to these claims.
I. Background
Robert St. Jovite was found unconscious and
unresponsive in his cell at CSP-Solano on May 10, 2006.
During his incarceration, St. Jovite was treated for
depression, anxiety, panic attacks, and early stages of
agoraphobia. After his last treatment session, St. Jovite filled
out an inmate appeal form in which he stated that his “daily
LEMIRE V . CAL. DEP’T OF CORR. 7
life [was] almost unmanageable” as a result of his mental
condition. St. Jovite never expressed any suicidal thoughts,
intentions, or feelings to his treating psychiatrist, however,
and his psychiatrist saw no evidence of suicidal ideation
during his treatment or through his review of St. Jovite’s
medical records.
In order to explain St. Jovite’s death, we first recount the
circumstances that led to his being left without supervision,
along with his fellow inmates, for as much as three and a half
hours. We then recount the chaotic and disputed
circumstances surrounding the response of CSP-Solano’s
staff to St. Jovite’s apparent suicide as stated by the parties,
in that same light. As we must at the summary judgment
stage, we view the relevant facts in the light most favorable
to Plaintiffs.
A. The Staffing of Building 8
The high rate of suicides in California prisons was a
“focus” of California prison administrators, including those
at CSP-Solano, from 2004 onwards as a result of the Coleman
v. Schwarzenegger litigation.1 In addition to suicide concerns,
1
The Coleman litigation deals, among other issues related to inmate
health, with the high rate of suicides in California Department of
Corrections and Rehabilitation (“CDCR”) prisons. In particular, the
Coleman Special Master submitted a report for the year 2005, the year
before St. Jovite died, indicating that 43 inmates committed suicide in
CDCR prisons that year, a rate of ~26 suicides per 100,000 inmates –
almost double the national average. See Coleman v. Brown, No. 90-00520,
Doc. No. 2566 at 1–2 (E.D. Cal. Nov. 26, 2007). Of these 43 suicides,
four took place at CSP-Solano, and at least three of the CSP-Solano
inmates who committed suicide were mentally ill inmates with the same
classification as St. Jovite. Because the Coleman special master’s reports
8 LEMIRE V . CAL. DEP’T OF CORR.
inmate-on-inmate violence was also a problem at CSP-
Solano. Warden Sisto explained that when he was hired to
run CSP-Solano he was told that the prison “needed some
work” and that “due to all the violence they were having, they
continued to have lockdowns, a lot of violence.”
St. Jovite was housed on the second tier in Building 8 of
CSP-Solano. Each of the two tiers in Building 8 had fifty
cells, and there were roughly 190 inmates between them at
the time of St. Jovite’s death. Building 8 was the designated
facility at CSP-Solano for housing inmates who utilized
certain psychotropic medications2 including patients
classified as Correctional Clinical Case Management System
inmates (“CCCMS”), a status given to inmates with
psychiatric illnesses. The majority of the inmates in Building
8, including St. Jovite and his cell mate John Lee Harden,
were classified as CCCMS inmates, meaning they suffered
from any of a variety of psychiatric illnesses. CCCMS is the
lowest level of care in the State’s prison mental health
delivery system, and is designed to provide a level of care
equivalent to that received by non-incarcerated patients
through outpatient psychiatric treatment. Although CSP-
Solano provided air conditioned facilities and otherwise
protected the inmates from exposure to heat, it did not
provide any additional security to the inmates in Building 8.
are court filings, it is appropriate to take judicial notice of them. See
Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir.
2006).
2
This is because Building 8 is air conditioned and patients using certain
psychotropic medications, or “heat meds,” cannot be exposed to extreme
heat because of the high risk that they will suffer a heat stroke.
LEMIRE V . CAL. DEP’T OF CORR. 9
The security staffing at CSP-Solano was broken into three
watches: first watch (10:00 p.m. to 6:00 a.m.), second watch
(6:00 a.m. to 2:00 p.m.), and third watch (2:00 p.m. to 10:00
p.m.). During the daytime watches (second and third watch),
Building 8 was staffed with two floor officers and one control
booth officer. During the graveyard shift (first watch),
Building 8 had a leaner staff, with a control booth operator
and one floor officer who split his time between Building 8
and another housing unit.
According to the Post Orders3 for correction officers at
Building 8, one of a floor officer’s “primary function[s] is to
act as a safeguard against suicide attempts as well as fires set
by inmates within the unit.” Naturally, floor officers are also
responsible for preventing crime, including inmate-on-inmate
violence, and maintaining order and safety. In order to
accomplish these goals, “[s]ecurity inspections of the unit
shall be made upon assuming and prior to leaving the post
and on an irregular basis throughout the shift” (emphasis
added). Security checks are supposed to be performed at least
after every unlock, and at least once an hour during daytime
watches regardless of whether there has been an unlock.
According to Neuhring, the Facility Captain in charge of
Building 8 and the officer who called the May 10 staff
meetings during which St. Jovite’s apparent suicide attempt
occurred, “[i]f the [floor] officers are doing their job” they
should regularly be “checking their tiers” and “walking
around.” The purpose of doing so is to “check[] the welfare
of the inmates, both looking for crime occurring and their
welfare.”
3
Post Orders are written, standing orders describing the duties and
responsibilities of officers in a given position in the California State Prison
system.
10 LEMIRE V . CAL. DEP’T OF CORR.
The extended absence of floor officers at Building 8 was
generally considered unacceptable. Neuhring stated that floor
officers should not all be pulled from the floor at the same
time except in “very rare” circumstances and that such
absences “shouldn’t be getting longer than [15–30 minutes].
It may be go [sic] into 45 minutes, but not normally.” Sisto
stated that if any inmates were out of their cells “you don’t
pull a floor officer out of the building.” By contrast, during
the graveyard shift, when prisoners are asleep, Sisto
considered it acceptable for there to be no floor officer
actively patrolling for up to an hour and a half, but two hours
“would be pushing it.”4
CSP-Solano’s supervisors’ views of what was safe was
more lax than the standards promulgated by the American
Correctional Association and the CDCR. Those standards, as
explained by Plaintiffs’ expert witness, mandate that “all
special management inmates [be] personally observed by a
correctional officer at least every 30 minutes on an irregular
schedule.”
When Defendants Cahoon and Holliday, the third shift
floor officers assigned to Building 8 on May 10, 2006,
reported for duty at Building 8 shortly before 2:00 p.m., they
were both told to report directly to a staff meeting convened
by Neuhring rather than conducting the beginning-of-shift
4
However, Sisto’s predecessor as warden, Thomas Carey, stated that he
was unaware that it was ever the case that there were no floor officers on
duty in Building 8.
LEMIRE V . CAL. DEP’T OF CORR. 11
security check that was required by their Post Orders.5
According to Holliday, the floor officers from the second
watch were also not on the floor at Building 8 at the time that
he and Cahoon were told to report to the staff meeting, as
second watch’s floor officers also had been called into a staff
meeting on the same subject, sometime between 12:00 and
12:30 p.m.6 This left only Control Booth Officer Jaime Chua
on watch in Building 8, but he was not permitted to leave the
control booth for any reason, and could not see into most cells
from his control booth. Harden testified that at some point
around 12:30 p.m., a prison official announced to the inmates
of Building 8 that a staff meeting was occurring. As a result,
the inmates were on notice that they were unsupervised.
Cahoon and Holliday returned to Building 8 around
3:30 p.m. At that point, viewing the evidence in the light most
favorable to Plaintiffs, the inmates in Building 8 had been left
without any floor supervision, without security checks, and
without any prison official (other than the control booth
officer) able to respond to an emergency call, for as much as
three and a half hours. Although Cahoon and Holliday
believed that Building 8 was on lockdown during their
5
Some evidence suggests that the meetings concerned the stabbing of
a prison guard at another CDCR facility, but as Plaintiffs note, this fact is
not clearly established in light of the fact that only Cahoon could recall the
subject of the meetings; Neuhring himself could not. Although Sisto did
not remember approving the meetings, Neuhring testified that it would
have been necessary for the W arden to have approved any such meetings.
6
Neuhring explained that his custom, when convening staff meetings,
was to schedule back-to-back meetings: one with outgoing staff from an
earlier watch, followed immediately by another meeting with the incoming
staff from the later watch.
12 LEMIRE V . CAL. DEP’T OF CORR.
absence, when they returned there were 10 or 15 inmates who
“weren’t supposed to be out” milling around in the day room.
B. St. Jovite’s Death
Almost immediately upon their return, Cahoon and
Holliday heard St. Jovite’s cell mate Harden yelling “man
down.” After identifying which cell the shouts were coming
from, Cahoon and Holliday went up to the second tier, where
the cell was located. Cahoon testified that through the cell
door she saw St. Jovite sitting on the ground with his back
against the corner of the door. Harden was standing above St.
Jovite and looked like he was slapping him. Believing that
Harden and St. Jovite had been fighting, Cahoon told Harden
to back away and asked what happened. Harden stated that he
had been asleep and woke up to find St. Jovite hanging from
the grill over the sink.
The events that followed are disputed, and the evidence
in the record is contradictory. Defendants, relying primarily
on the incident reports and deposition testimony of Cahoon
and Holliday, argue that Cahoon called a medical code 2 at
that time, 3:44 p.m., and sent Holliday to get a cut-down kit
and CPR mask from the control booth. While waiting for
Holliday to return, Cahoon saw Defendant Medical Technical
Assistant Shabreen Hak (MTA Hak) approaching the building
and Defendant Search and Escort Officer Raymond Wade
coming up the stairs to the second tier. CSP-Solano policy
was that staff members could not open a cell door without at
least one other staff member present, so Cahoon waited until
Hak and Wade were close and then signaled to Chua, the
control booth officer, to open the cell door. According to
Defendants, MTA Hak arrived at 3:45 p.m. just as the cell
door was opening. Holliday testified that he arrived back at
LEMIRE V . CAL. DEP’T OF CORR. 13
the cell door with the cut-down kit along with MTA Hak and
Wade. After cracking the door open, Cahoon saw that St.
Jovite had a noose around his neck and instructed Wade to
call a medical code 3.
When the door opened fully, St. Jovite, who had been
sitting against the corner of the cell, rolled onto his back until
his body was partially protruding from the cell. Wade then
escorted Harden downstairs. Cahoon described St. Jovite as
cold to the touch with a sheet around his neck, a purplish
color on his face, and dried mucous and spit around his
mouth. Cahoon attempted to get a response from him by
saying “Hey, St. Jovite.” Holliday similarly asked St. Jovite
if he was okay, but St. Jovite did not respond. Because MTA
Hak was at the scene, Cahoon and Holliday deferred to her,
as medical staff, and stayed a few feet away from where St.
Jovite was on the floor.
Plaintiffs disagree with this sequence of events.
Specifically, Plaintiffs dispute when Cahoon and Holliday
called the medical code 2 and ordered Chua to open the cell
door. They also contest whether MTA Hak arrived as the cell
door was opening or at some point after it had been opened
by Chua with St. Jovite already on the floor. Plaintiffs rely on
the incident report prepared by Chua, the control booth
officer who opened the cell door, which states that after
Cahoon and Holliday looked inside the cell, they instructed
Chua to unlock the door, went inside, and thereafter called for
a medical code 2. The summary report prepared by Defendant
Lieutenant Gordon Wong similarly states that Cahoon and
Holliday ordered Chua to open the cell door and discovered
St. Jovite unconscious prior to calling the medical code 2.
Moreover, six of the incident reports originally reported that
the medical code 2 was called at 3:40 p.m., not 3:44 p.m. as
14 LEMIRE V . CAL. DEP’T OF CORR.
Cahoon and Holliday contend. Wong later instructed officers
(including Chua and MTA Hak) to change the time in their
reports to 3:44 p.m., so that it coincided with the time that
Cahoon and Holliday had indicated in their reports. Several
other incident reports, however, remained unchanged and
stated that the medical code was called at 3:40 p.m.
Plaintiffs contend that this evidence supports a finding
that Cahoon and Holliday called the medical code at
3:40 p.m., and that MTA Hak did not arrive until five minutes
later, at 3:45 p.m., when St. Jovite was already on the floor.
They argue that Cahoon and Holliday waited five minutes
after discovering St. Jovite without providing any assistance.
The district court noted that although many of the incident
reports were altered to modify the time Cahoon placed the
medical code 2 call, “[t]he incident reports do not show that
Hak’s arrival time was changed.” The court therefore held
that “it is uncontroverted that Hak arrived as soon as the area
was secured.” The district court failed to note, however, that
(1) no incident reports besides those of Cahoon and Holliday
mentioned MTA Hak arriving as the door opened, and (2)
Chua, who actually opened the door, reported that Cahoon
and Holliday entered the cell initially upon arrival and
thereafter called the medical code. MTA Hak testified that
she believes she drove a golf cart to Building 8 in response to
the medical code, calling into question whether she could
have responded to the scene at 3:45 p.m., one minute after the
medical code was called at 3:44 p.m., as Defendants contend.
There are, therefore, factual disputes as to whether Cahoon
and Holliday opened the cell door and found St. Jovite laying
unconscious before calling the medical code, when the
medical code 2 call was placed, and when MTA Hak arrived
at the scene.
LEMIRE V . CAL. DEP’T OF CORR. 15
Starting with MTA Hak, a succession of medical
personnel arrived, each briefly assessing St. Jovite and then
deferring to the next to arrive. Other custodial staff members
– Defendants Wong, Sergeant Cheryl Orrick, Sergeant Gale
Martinez, Officer Alfredo Alcaraz, and non-defendant Officer
N. Soliz – arrived intermittently. According to MTA Hak, she
arrived at the scene at 3:45 p.m., and remembers the officers
standing around. MTA Hak testified that she unsuccessfully
checked for a pulse, observed that St. Jovite was purplish in
color and that his feet were cold, and believed that he had
gone into rigor mortis. MTA Hak then began applying an
automated external defibrillator (AED) on St. Jovite by
sticking patches on his chest. As she did so, Registered Nurse
Gregory Hill (RN Hill) arrived at approximately 3:48 p.m.7
The AED produced a flat line, and MTA Hak stepped aside
to allow RN Hill to examine St. Jovite. RN Hill noted that St.
Jovite had a purplish color on his face, chest, and right
shoulder, found no pulse, and noted that his eyes were
dilated.
Wade, who arrived at around the same time as MTA Hak,
proceeded to secure Building 8 and later stepped outside to
provide coverage for the code 3 ambulance. Martinez testified
that, when she arrived at the scene, MTA Hak was standing
by the cell door. Martinez did not perform CPR because
medical personnel were present and custodial staff do not
interfere with medical staff. Orrick arrived at the scene and
took on the role of incident scribe. Orrick did not perform
CPR because medical staff were present. Wong arrived
sometime later and testified that when he arrived, nothing was
being done to St. Jovite. Everyone was standing around,
trying to get a response from St. Jovite by talking to him.
7
RN Hill is no longer a defendant in this action.
16 LEMIRE V . CAL. DEP’T OF CORR.
Wong, like Martinez and Orrick, did not perform CPR or
order someone else to perform CPR because medical staff
were present. Alcaraz arrived and, as a security and
investigations officer, documented the scene by taking
pictures.
Defendant Supervising Registered Nurse Dorothy Hicks
(SRN Hicks) was the next medical staff member to arrive, but
it is unclear when she did so. SRN Hicks likely arrived at the
scene sometime within the fifteen minute window between
3:50 p.m. and 4:05 p.m. According to SRN Hicks, when she
arrived, MTA Hack, RN Hill, and the other responders “were
standing around [St. Jovite] and nothing was being done.”
SRN Hicks found that St. Jovite “had severe bluish
discoloration from the nipple line up; there was no
spontaneous respirations; his pupils were fixed and dilated;
and there was no carotid pulse.” SRN Hicks also determined
that “[t]here was no lividity or rigor mortis. . . . So [St.
Jovite’s death] was pretty recent.” SRN Hicks nevertheless
determined that death was irreversible.
When Dr. Noriega arrived, MTA Hak and SRN Hicks
were standing over St. Jovite. SRN Hicks deferred to Dr.
Noriega, who also determined that St. Jovite was dead and
beyond revival, although he did not pronounce St. Jovite
dead. Paramedics from Vaca Valley Hospital arrived at
approximately 4:09 p.m. and began CPR on St. Jovite, along
with other attempts to revive him. These attempts were
unsuccessful, and St. Jovite was pronounced dead by Dr. H.
Zimmerman from Vaca Valley Hospital via phone at
4:29 p.m.
In Coleman, the court issued an order to the CDCR
requiring that a policy be implemented requiring custodial
LEMIRE V . CAL. DEP’T OF CORR. 17
staff to provide immediate life support to inmates until
medical staff arrives. Coleman, No. 90-00520, Doc. No. 1668
at 1–2 (E.D. Cal. June 9, 2005). In response, the CDCR
amended its CPR policy and implemented it through a memo
authored by Director John Dovey (“the Dovey Memo”). The
Dovey memo provided that:
All peace officers who respond to a medical
emergency are mandated . . . to provide
immediate life support, if trained to do so,
until medical staff arrives to continue life
support measures. . . . A Correctional Peace
Officer’s initiation of life support does not
relieve responding medical personnel of their
responsibility to assume life saving efforts
upon arrival. Responding medical personnel
shall assume primary responsibility in the
provision of medial attention and life saving
efforts upon their arrival. The combined
efforts of both custody and medical personnel
are expected. Both custody and medical
personnel are responsible to continue life
saving efforts in unison as long as necessary.
Defendant Tom Carey was the warden at CSP-Solano
from July 2001 to March 31, 2006, and was replaced by
Defendant D.K. Sisto on May 9, 2006, one day prior to this
incident. In a declaration to the Coleman court in January
2007, Carey averred that 99.9% of CSP-Solano’s designated
employees had been trained in the performance of CPR and
all but forty-one had received training on the amended CPR
policy. Following St. Jovite’s death, it was determined that
MTA Hak and RN Hill “need[ed] instruction as to immediate
implementation of CPR even when there are no signs of life.
18 LEMIRE V . CAL. DEP’T OF CORR.
Training was completed 5/11/06,” one day after St. Jovite’s
death. Defendant Dr. Alvaro Traquina was the Chief Medical
Officer at CSP-Solano and was responsible for ensuring that
medical staff was properly trained and certified in providing
medical care, including life saving measures such as CPR.
II. Discussion
A district court’s grant of summary judgment in a § 1983
action is reviewed de novo. See Pinard v. Clatskanie School
Dist. 6J, 467 F.3d 755, 763 (9th Cir. 2006). We must
determine “whether, viewing the evidence in the light most
favorable to the non-moving party, there are genuine issues
of material fact and whether the district court correctly
applied the relevant substantive law.” Lopez v. Smith,
203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). “An issue of
material fact is genuine ‘if there is sufficient evidence for a
reasonable jury to return a verdict for the non-moving party.’”
Thomas v. Ponder 611 F.3d 1144, 1150 (9th Cir. 2010)
(quoting Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185
(9th Cir. 2006)).
For an inmate to bring a valid § 1983 claim against a
prison official for a violation of the Eighth Amendment, he
must first “objectively show that he was deprived of
something ‘sufficiently serious.’” Foster v. Runnels, 554 F.3d
807, 812 (9th Cir. 2009) (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994)). “A deprivation is sufficiently
serious when the prison official’s act or omission results ‘in
the denial of the minimal civilized measure of life’s
necessities.’” Id. (quoting Farmer, 511 U.S. at 834).
Next, the inmate must “make a subjective showing that
the deprivation occurred with deliberate indifference to the
LEMIRE V . CAL. DEP’T OF CORR. 19
inmate’s health or safety.” Foster, 554 F.3d at 812. To satisfy
this subjective component of deliberate indifference, the
inmate must show that prison officials “kn[e]w[] of and
disregard[ed]” the substantial risk of harm, but the officials
need not have intended any harm to befall the inmate; “it is
enough that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm.” Farmer,
511 U.S. at 837, 842.
Finally, plaintiffs alleging deliberate indifference must
also demonstrate that the defendants’ actions were both an
actual and proximate cause of their injuries. See Conn v. City
of Reno, 591 F.3d 1081, 1098–1101 (9th Cir. 2010), vacated
by 131 S. Ct. 1812 (2011), reinstated in relevant part
658 F.3d 897 (9th Cir. 2011).
Vicarious liability may not be imposed on a supervisor for
the acts of lower officials in a § 1983 action. Fayle v. Stapley,
607 F.2d 858, 862 (9th Cir. 1979). A prison official in a
supervisory position may be held liable under § 1983,
however, “if he or she was personally involved in the
constitutional deprivation or a sufficient causal connection
exists between the supervisor’s unlawful conduct and the
constitutional violation.” Lolli v. Cnty. of Orange, 351 F.3d
410, 418 (9th Cir. 2003) (quoting Jackson v. City of
Bremerton, 268 F.3d 646, 653 (9th Cir. 2001)). This causal
connection can include: “1) [the supervisors’] own culpable
action or inaction in the training, supervision, or control of
subordinates; 2) their acquiescence in the constitutional
deprivation of which a complaint is made; or 3) [their]
conduct that showed a reckless or callous indifference to the
rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292
(9th Cir. 2000).
20 LEMIRE V . CAL. DEP’T OF CORR.
Parents and children may assert Fourteenth Amendment
substantive due process claims if they are deprived of their
liberty interest in the companionship and society of their child
or parent through official conduct. Wilkinson v. Torres,
610 F.3d 546, 554 (9th Cir. 2010) (citing Curnow ex rel.
Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.
1991)); see also Moreland v. Las Vegas Metro. Police Dep’t,
159 F.3d 365, 371 (9th Cir. 1998). “[O]nly official conduct
that ‘shocks the conscience’ is cognizable as a due process
violation.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir.
2008) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833,
846 (1998)). Just as the deliberate indifference of prison
officials to the medical needs of prisoners may support Eighth
Amendment liability, such indifference may also “rise to the
conscience-shocking level” required for a substantive due
process violation. Lewis, 523 U.S. at 849–50. A prison
official’s deliberately indifferent conduct will generally
“shock the conscience” so as long as the prison official had
time to deliberate before acting or failing to act in a
deliberately indifferent manner. See Tennison v. City and
Cnty. of San Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009);
Porter v. Osborn, 546 F.3d 1131, 1138 (9th Cir. 2008).
A. Removal of Floor Officers
Plaintiffs contend that by removing the floor officers from
Building 8 for several hours during the middle of the day,
Defendants Sisto, Neuhring, Wong, Martinez, and Orrick
(“Supervisory Defendants”) deprived St. Jovite of the
availability of “medical or mental health treatment” and
“meaningful supervision protecting him from harm,” both of
which were sufficiently serious deprivations to form the basis
of an Eighth Amendment violation.
LEMIRE V . CAL. DEP’T OF CORR. 21
The district court did not evaluate the objective
“sufficiently serious” prong, see above at 18, instead ending
its analysis after determining that Defendants’ actions in
removing the floor officers did not satisfy the subjective
“deliberate indifference” prong. The district court held that
“[e]ven assuming that each of [the Supervisory] Defendants
was responsible for the removal decision, the record is devoid
of evidence from which it can reasonably be inferred that any
Defendant knew the removal would subject St. Jovite to a
substantial health or safety risk,” and further, that “there [is
no] evidence in the record from which it can be reasonably
inferred that the removal created an ‘obvious’ risk of harm to
St. Jovite.”(citing Thomas, 611 F.3d at 1150). We disagree
with respect to Defendants Sisto and Neuhring, but we affirm
with respect to Defendants Wong, Martinez and Orrick.
1. Sufficiently Serious Prong
In a failure to protect claim, an inmate satisfies the
“sufficiently serious deprivation” requirement by “show[ing]
that he is incarcerated under conditions posing a substantial
risk of serious harm.” Farmer, 511 U.S. at 834. The objective
question of whether a prison officer’s actions have exposed
an inmate to a substantial risk of serious harm is a question of
fact, and as such must be decided by a jury if there is any
room for doubt. Conn, 591 F.3d at 1095 (holding that the
objective question of whether there was a substantial risk that
an arrestee might commit suicide should be decided by a
jury); see also Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir.
2011); Howard v. Waide, 534 F.3d 1227, 1237 (10th Cir.
2008).
Inadequate staffing can create an objective risk of
substantial harm in a prison setting that is sufficient to satisfy
22 LEMIRE V . CAL. DEP’T OF CORR.
the objective prong of the deliberate indifference test. See
Hoptowit v. Ray, 682 F.2d 1237, 1251 (9th Cir. 1982),
abrogated on other grounds by Sandin v. Conner, 515 U.S.
472 (1995). “[H]aving stripped [inmates] of virtually every
means of self-protection and foreclosed their access to
outside aid, the government and its officials are not free to let
the state of nature take its course.” Farmer, 511 U.S. at 833.
Morever, in order to satisfy the objective prong, it is enough
for the inmate to demonstrate that he was exposed to a
substantial risk of some range of serious harms; the harm he
actually suffered need not have been the most likely result
among this range of outcomes. See Gibson v. Cnty. of
Washoe, Nev., 290 F.3d 1175, 1193 (9th Cir. 2002). “[I]t does
not matter whether the risk comes from a single source or
multiple sources, any more than it matters whether a prisoner
faces an excessive risk . . . for reasons personal to him or
because all prisoners in his situation face such a risk.”
Farmer, 511 U.S. at 843. Therefore, it is relevant here that St.
Jovite was not just exposed to a risk of suicide, but also to the
risk of harm from other mentally ill inmates in Building 8,
including his cell mate.8
Plaintiffs have established a triable issue of fact as to
whether the withdrawal of all floor staff from Building 8 for
up to three and a half hours created an objectively substantial
risk of harm to the unsupervised inmates in Building 8. At
CSP-Solano, as in most prisons, inmate suicides and violence
8
St. Jovite’s cell mate Harden, for example, suffered from a bi-polar
disorder. In their reply brief, Plaintiffs suggest for the first time the
possibility that St. Jovite was actually killed by Harden, rather than having
committed suicide. Regardless of whether this theory of the case was
properly raised, its plausibility further emphasizes the dangers that St.
Jovite was exposed to by the extended lack of supervision at Building 8
on the day of his death.
LEMIRE V . CAL. DEP’T OF CORR. 23
are the primary dangers floor officers are charged with
preventing. As described above, these problems were acute at
CSP-Solano. Floor staff, supervisors, and Plaintiffs’ expert
witness (a former prison warden with decades of experience
in the field), provided sworn statements or testimony that
inmates should not be left without supervision for extended
periods of time. Floor officers’ Post Orders required them to
conduct security checks and searches of inmates and cells on
no less than an hourly basis during daytime watches, and to
do so on an irregular schedule designed to ensure that inmates
could not anticipate when they might be observed. None of
the prison officials who were deposed indicated that a three-
hour-plus absence of floor staff during the day would be
permissible. On such a record a reasonable jury could find
that the withdrawal of all floor officers posed a substantial
risk that some inmate would come to harm, either self-
inflicted or otherwise, and that an inmate suffering such harm
would not receive swift medical attention as a result of the
inadequate staffing.
The danger posed to Building 8’s inmates by the
withdrawal of all supervisory floor staff for up to three and a
half hours was exacerbated by the fact that most of the
inmates at Building 8 were mentally ill. A jury could infer
that unsupervised mentally ill inmates housed together are
more likely to harm themselves or others than are inmates in
the regular prison population. There was evidence that would
support such an inference. Plaintiffs’ expert opined that
mentally ill CCCMS inmates in Building 8 should not be left
unsupervised for more than 30 minutes, explaining that
CCCMS inmates “can have a need for staff response in a
moment’s notice, and the staff need[s] to be there to respond
and especially so if it’s a life/health/safety issue. . . . The
Control Booth Officer on whom the Wardens rely in
24 LEMIRE V . CAL. DEP’T OF CORR.
removing the floor staff, is too far removed from direct
contact and surveillance of CCCMS inmates.” In reaching
this conclusion, Plaintiffs’ expert was informed by the ACA’s
standards and CDCR regulations. Although such standards do
not set the constitutional minimum for prison conditions, a
jury could consider these guidelines in determining whether
the circumstances on May 10, 2006 at Building 8 presented
an objectively substantial risk that one of the mentally ill
inmates there might suffer serious harm as a result being left
unsupervised for an extended period of time. See Hoptowit,
682 F.2d at 1249 (noting that the state standards, though not
establishing the constitutional minimum, are “relevant
evidence” of whether prison conditions violate the Eighth
Amendment).
The State, however, argues that because Building 8 was
often without a floor officer for one and a half hours during
the graveyard shift, the three and a half hour lack of
supervision during the daytime shifts did not constitute a
substantial risk of serious harm to the CCCMS inmates in
Building 8. Even assuming, without deciding, that CSP-
Solano’s practices at Building 8 during the graveyard shift
were safe or reasonable, it does not follow that the same
practices were safe or reasonable during the daytime watches
or, more to the point, that a jury could not reasonably
conclude to the contrary. Under CSP-Solano’s staffing
practices, Building 8 is required to be staffed by one control
booth operator and two floor officers during the daytime
watches, but only one control booth operator and a single
floor officer, who is also responsible for monitoring a second
building, during the graveyard shift. A jury could reasonably
infer that CSP-Solano officials recognized a general need for
additional security during the day, and that the reason for
providing less security at night is that inmates are less of a
LEMIRE V . CAL. DEP’T OF CORR. 25
danger to themselves during the graveyard shift and that more
supervision is required during daylight hours.
In sum, Plaintiffs have established a triable issue of fact
as to whether the withdrawal of all floor staff from Building
8 for up to three and a half hours created an objectively
substantial risk of harm to the unsupervised inmates in
Building 8.
2. Deliberate Indifference Prong
As a preliminary matter, we must first address Plaintiffs’
contention that the district court misapplied the “deliberate
indifference” standard by discussing only whether the
Supervisory Defendants knew that the removal decision
posed a serious risk of harm to St. Jovite specifically. Instead,
Plaintiffs argue that the proper question is whether the
decision to remove the floor staff from Building 8 posed a
serious risk of substantial harm to any prisoner.
Plaintiffs are correct. The appropriate inquiry was
whether the Supervisory Defendants were aware that
removing all floor officers from Building 8 for over three and
a half hours would pose a substantial risk of serious harm to
someone in St. Jovite’s situation, not simply whether they
were subjectively aware of St. Jovite’s specific medical
needs. See Gibson, 290 F.3d at 1191 (“We note that the
question of whether the County policies violated Gibson’s
rights does not hinge on whether County policymakers knew
that the County’s policies would pose a substantial risk of
serious harm to Gibson, in particular. As long as a jury can
infer that the policymakers knew that their policy of not
screening certain incoming detainees would pose a risk to
someone in Gibson’s situation, we must reverse the summary
26 LEMIRE V . CAL. DEP’T OF CORR.
judgment in favor of the County.”); see also Farmer,
511 U.S. at 843–44; Redman v. Cnty. of San Diego, 942 F.2d
1435, 1435, 1448 (9th Cir. 1991) (en banc).
This subjective inquiry involves two parts. First, Plaintiffs
must demonstrate that the risk was obvious or provide other
circumstantial or direct evidence that the prison officials were
aware of the substantial risk to the Building 8 inmates’ safety.
Thomas, 611 F.3d at 1150. Second, they must show that there
was no reasonable justification for exposing the inmates to
the risk. Id. Both of these inquiries are fact-intensive and
typically should not be resolved at the summary judgment
stage; as the Supreme Court has explained, “[w]hether a
prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence, and
a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.”
Farmer, 511 U.S. at 842 (citation omitted); see Conn,
591 F.3d at 1097; Thomas, 611 F.3d at 1152; Gibson,
290 F.3d at 1190–91. Applying the correct subjective inquiry
here, we hold that Plaintiffs created a triable issue of fact as
to whether Defendants Sisto and Neuhring are liable for St.
Jovite’s death under the subjective component of the
deliberate indifference test. We affirm, however, with respect
to Defendants Wong, Martinez and Orrick because they did
not act unreasonably under the circumstances.
a. Neuhring and Sisto
First, Plaintiffs have presented sufficient evidence from
which a jury could conclude that Neuhring and Sisto were
both aware of the risks posed by withdrawing all floor
officers from Building 8 for over three hours. A jury could
LEMIRE V . CAL. DEP’T OF CORR. 27
find the risks of leaving mentally ill inmates unsupervised for
over three hours to be obvious. Moreover, obviousness is not
measured by what is obvious to a layman, but rather by what
would be obvious “in light of reason and the basic general
knowledge that a prison official may be presumed to have
obtained regarding the type of deprivation involved.”
Thomas, 611 F.3d at 1151. The Coleman litigation was well
known in penological circles and to officials at CSP-Solano.
That litigation specifically alerted prison officials to the acute
problem of inmate suicides in CDCR prisons, including CSP-
Solano.
Even without this background, the record contains
circumstantial evidence from which a reasonable jury could
conclude that Sisto and Nuehring were aware of the risks.
This case is similar in many ways to our decision in Gibson,
290 F.3d 1175. In Gibson, we held that the county was not
entitled to summary judgment as to whether its policy of
delaying mental health screenings for recently arrested,
combative detainees was deliberately indifferent to the
possibility that some combative mentally ill detainee might
suffer harm as a result of being jailed without receiving an
immediate screening. See id. at 1190. We found that a triable
issue of deliberate indifference existed in light of
circumstantial evidence that: (1) jail officials knew that some
combative detainees suffer from mental illness, (2) the jail
had policies demonstrating its awareness that such mentally
ill individuals sometimes require care urgently, and (3) the
jail had abandoned a previous practice designed to address
this need. Id. at 1190–91.
Similarly, here, Sisto and Neuhring were aware that the
majority of the inmates in Building 8 were CCCMS inmates
and used psychotropic “heat meds.” The Post Orders for
28 LEMIRE V . CAL. DEP’T OF CORR.
Building 8 floor staff state that prevention of, and immediate
response to, suicide attempts is a “primary” duty of floor
staff, and therefore require floor officers to continuously
circulate on an irregular schedule in between formal searches
and security checks. Neuhring described this continuous
supervision as “necessary” to protect the safety and security
of the inmates. Finally, on the day of St. Jovite’s death, the
evidence shows that Sisto and Neuhring failed to follow these
policies. Just as in Gibson, here a jury could conclude from
these facts that Sisto and Neuhring were aware that their
actions would result in a substantial risk of harm to inmates
such as St. Jovite.
With respect to Sisto, the State argues that he was
unaware of the meetings, and notes that there is no
respondeat superior liability under § 1983. Although the
State’s statement of the law is correct, its description of the
facts is not. The State disregards the fact that Neuhring said
that staff meetings involving all floor officers could not have
occurred without approval by the Warden. This is sufficient
to create a disputed question of fact as to whether Sisto
authorized these particular staff meetings and whether he
was, therefore, deliberately indifferent to the risks they
created. See Redman, 942 F.2d at 1447 (finding a
subordinate’s testimony that he acted under the direction of
a superior sufficient to create a triable issue of fact as to the
supervisor’s § 1983 liability).
Second, Plaintiffs presented sufficient evidence for a jury
to conclude that there was no reasonable justification for the
decision to withdraw all floor officers from Building 8 for
over three hours without putting in place any plan to ensure
inmate safety. A prison official’s justification for exposing
inmates to a substantial risk of harm is reasonable only if it
LEMIRE V . CAL. DEP’T OF CORR. 29
represents a proportionate response to the penological
circumstances in light of the severity of the risk to which the
inmates are exposed. See Thomas, 611 F.3d at 1154–55.
Except in emergency situations, a failure to consider
reasonable alternatives is strong evidence that a prison
official’s actions were unreasonable. Id. at 1155.
The record would allow a jury to conclude that there was
no emergency at CSP-Solano on May 10, 2006, and that there
was no other reasonable explanation for conducting back-to-
back, 90-minute staff meetings, thus leaving the inmates in
Building 8 unsupervised for over three hours. Neuhring
stated that staff meetings should not – and did not – typically
exceed 45 minutes because “we’re cognizant [when holding
staff meetings] of the fact that we have both [floor] staff out
of the housing units.” Yet, although some evidence suggests
that the staff meetings concerned the subject of an assault on
a guard at another prison, Neuhring himself could not recall
their purpose. This would permit a jury to infer that the
meetings were not a response to an unprecedented crisis.
The record also demonstrates that other alternatives to the
lengthy staff meetings were readily available. Neuhring
himself explained that when he was a sergeant he would
frequently disseminate critical information to floor officers by
“pull[ing] them all out to the yard, the center of the yard, for
10 or 15 minutes to go over whatever is occurring.”
Furthermore, even assuming, arguendo, that there was some
justification for conducting a one and a half hour staff
meeting with each watch, the record contains no explanation
why it was necessary to stack two such staff meetings back-
to-back, thereby doubling the amount of time that the inmates
30 LEMIRE V . CAL. DEP’T OF CORR.
were left unsupervised.9 In short, a jury could conclude that
Neuhring and Sisto (assuming he approved of the meetings)
lacked any reasonable basis for calling consecutive staff
meetings that left the inmates of Building 8 unsupervised for
over three hours on the afternoon of St. Jovite’s death.
b. Wong, Martinez, and Orrick
Lieutenant Wong and Sergeant Martinez were the
supervising officers in Building 8 at the time of the staff
meetings. Sergeant Orrick was the supervising officer at a
different building at CSP-Solano. For the same reasons that
there is a triable issue of fact as to whether Sisto and
Neuhring were aware of the objective risk posed by
withdrawing all floor officers from Building 8 for up to three
and a half hours, Plaintiffs also created a triable issue of fact
as to whether Wong, Martinez, and Orrick were aware of the
risks posed by the staff meetings.
Plaintiffs have not, however, created a triable issue of fact
as to whether Wong, Martinez and Orrick’s actions were
reasonably justified. With respect to Orrick, there is no doubt
that her actions were reasonable. She was staffed at an
entirely different building and, therefore, it was not
unreasonable for her to fail to take any action at Building 8.
9
The State argues, without citation, that the decision to convene the staff
meetings in this fashion “is entitled to deference.” Even if we generally
owe deference to prison officials’ day-to-day determinations of
penological necessity, see, e.g., Turner v. Safley, 482 U.S. 78, 84–85
(1987), such deference is unjustified under these circumstances in which
the prison official in question cannot recall the purpose of the staff
meetings and fails to explain his reasoning or how his decision was
consistent with his prior practice regarding staff meetings, cf. Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944).
LEMIRE V . CAL. DEP’T OF CORR. 31
Accordingly, we affirm the district court’s grant of summary
judgment in her favor.
The issue is closer in the cases of Wong and Martinez.
They were the officers responsible for ensuring that floor
officers were performing their duties at Building 8 on the day
of St. Jovite’s death. Nonetheless, under these unique
circumstances, in which Captain Neuhring ordered the floor
staff supervised by Wong and Martinez to attend the staff
meetings without allowing Wong and Martinez time to make
alternative staffing arrangements, no reasonable jury could
conclude that Wong and Martinez acted unreasonably.
3. Causation
“If reasonable persons could differ” on the question of
causation then “summary judgment is inappropriate and the
question should be left to a jury.” White, 901 F.2d at 1506;
see Conn, 591 F.3d at 1100. The State does not contend that
Plaintiffs failed to create a triable issue of fact regarding
actual or proximate causation with respect to the failure to
protect claim, assuming that Defendants were deliberately
indifferent to the risks posed by withdrawing all floor staff
from Building 8.
The State is right not to do so. As a practical matter,
plaintiffs who have already demonstrated a triable issue of
fact as to whether prison officials exposed them to a
substantial risk of harm, and who actually suffered precisely
the type of harm that was foreseen, will also typically be able
to demonstrate a triable issue of fact as to causation. See, e.g.,
Conn, 591 F.3d at 1098–1101; White v. Roper, 901 F.2d
1501, 1505 (9th Cir. 1990). That is the case here. Just as the
jury could conclude that Sisto and Neuhring were deliberately
32 LEMIRE V . CAL. DEP’T OF CORR.
indifferent to the risks that an inmate would be seriously
harmed during a three-hour-plus period without supervision,
so too could the jury conclude that such harm could have
been prevented with adequate supervision.
Accordingly, we hold that summary judgment should not
have been granted to Defendants Neuhring and Sisto with
respect to Plaintiffs’ claims that the withdrawal of all floor
officers from Building 8 for over three hours violated St.
Jovite’s Eighth Amendment right to be free from cruel and
unusual punishment. To be sure, a jury could reasonably find
in favor of these Defendants, but at this stage, it matters only
that there is a genuine issue of material fact as to these
claims, such that summary judgment should not have been
granted. Similarly, because Plaintiffs created a triable issue of
fact as to whether Neuhring and Sisto acted with deliberate
indifference to St. Jovite’s safety, and because their decision
to convene the staff meetings was made with time to
deliberate, summary judgment should not have been granted
with respect to Plaintiffs’ substantive due process claims
against Neuhring and Sisto. See Lewis, 523 U.S. at 849–50;
Tennison, 570 F.3d at 1089.
B. Failure to Administer CPR or Other Life-Saving
Measures
The district court granted summary judgment to
Defendants Cahoon, Holliday, Wade, Alcaraz, Chua, Wong,
Martinez, and Orrick, with respect to Plaintiffs’ failure to
administer CPR claim, concluding that each “deferred to the
judgment of the medical staff members concerning whether
CPR or other life-saving measures should be used on St.
Jovite.” The district court held that these Defendants
reasonably relied on the medical staff and therefore did not
LEMIRE V . CAL. DEP’T OF CORR. 33
act with deliberate indifference to the medical needs of St.
Jovite. As to MTA Hak, who was the first medical officer to
arrive at the scene, the district court held that the evidence did
not show that she was subjectively aware that St. Jovite could
be revived before she stepped aside to allow RN Hill to assess
St. Jovite. The district court further concluded that SRN
Hicks and Dr. Noriega performed a medical assessment on St.
Jovite and determined that he could not be revived and that
Plaintiffs did not provide any evidence indicating that this
assessment was inaccurate. The court concluded, therefore,
that they did not act with deliberate indifference.
“To set forth a constitutional claim under the Eighth
Amendment predicated upon the failure to provide medical
treatment, first the plaintiff must show a serious medical need
by demonstrating that failure to treat a prisoner’s condition
could result in further significant injury or the unnecessary
and wanton infliction of pain. Second, a plaintiff must show
the defendant’s response to the need was deliberately
indifferent.” Conn, 591 F.3d at 1094–95 (internal quotation
marks and citation omitted). The “deliberate indifference”
prong requires “(a) a purposeful act or failure to respond to a
prisoner’s pain or possible medical need, and (b) harm caused
by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th
Cir. 2006); Conn, 591 F.3d at 1095 (quoting Jett, 439 F.3d at
1096). “Indifference may appear when prison officials deny,
delay or intentionally interfere with medical treatment, or it
may be shown in the way in which prison [officials] provide
medical care.” Jett, 439 F.3d at 1096 (citations and internal
quotations marks omitted). “[T]he indifference to [a
prisoner’s] medical needs must be substantial. Mere
‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not
support this [claim].” Broughton v. Cutter Labs., 622 F.2d
458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S.
34 LEMIRE V . CAL. DEP’T OF CORR.
97, 105–06 (1976)). Even gross negligence is insufficient to
establish deliberate indifference to serious medical needs.
Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
1. Sufficiently Serious Prong
Plaintiffs must show that St. Jovite had an objectively
serious medical need. Conn, 591 F.3d at 1095. St. Jovite was
found in his cell unconscious and not breathing. Defendants
properly do not dispute that the medical need here was a
serious one.
2. Deliberate Indifference Prong
Plaintiffs alleging an Eighth Amendment claim based
upon the failure to provide medical treatment must also show
that Defendants “were (a) subjectively aware of the serious
medical need and (b) failed to adequately respond.” Conn,
591 F.3d at 1096 (emphasis in original).
a. Cahoon and Holliday
The third watch floor officers, Cahoon and Holliday, were
the first of the prison personnel to arrive at St. Jovite’s cell.
Drawing all inferences in favor of Plaintiffs, as we must, it
could be found that St. Jovite’s cellmate began yelling “man
down” and “my cell[mate] hung himself” between 3:10 and
3:30 p.m. In response, Cahoon and Holliday generally went
to St. Jovite’s cell, opened the cell, discovered St. Jovite
unconscious, and called a medical code 2 alarm. However, it
is unclear from the record exactly what occurred during the
time from when Cahoon and Holliday heard the “man down”
call until Cahoon called a medical code 2 alarm at 3:40 p.m.
Cahoon did order that Holliday get a cut-down kit and CPR
LEMIRE V . CAL. DEP’T OF CORR. 35
mask during that time, but it is unclear why he did so as
St. Jovite’s body was already on the floor when they arrived
and both guards were required to carry CPR masks on their
persons at all times.
MTA Hak, the first medical staff to respond to the call,
did not arrive at the scene until 3:45 p.m., and when she did,
both Cahoon and Holliday were standing near St. Jovite but
not providing any aid. A jury could reasonably thus conclude
that Cahoon and Holliday delayed administering aid to St.
Jovite, while St. Jovite was unconscious, unresponsive, and
purplish in color on the floor. Both Cahoon and Holliday (1)
were informed that St. Jovite “hung himself,” (2) observed a
“noose” around his neck, and (3) attempted to speak to St.
Jovite to get his attention. However, Cahoon called a medical
code 2 and ordered Holliday to retrieve the cut-down kit and
CPR mask from the control booth.
As other circuits have held, failing to provide CPR or
other life-saving measures to an inmate in obvious need can
provide the basis for liability under § 1983 for deliberate
indifference. See McRaven v. Sanders, 577 F.3d 974, 983 (8th
Cir. 2009) (“An officer trained in CPR, who fails to perform
it on a prisoner manifestly in need of such assistance, is liable
under § 1983 for deliberate indifference.”); Jones v. City of
Cincinnati, 521 F.3d 555, 560 (6th Cir. 2008) (“The
complaint alleges that each of the officers present . . . knew
that the handcuffed [prisoner] was not breathing. Therefore
each knew of a substantial risk of serious harm to Jones’s
safety while he was in their custody and disregarded that risk
by failing to provide aid.”); Bozeman v. Orum, 422 F.3d
1265, 1273 (11th Cir. 2005) (“We also conclude that the
Officers, who knew [the prisoner] was unconscious and not
breathing and who then failed for fourteen minutes to check
36 LEMIRE V . CAL. DEP’T OF CORR.
[his] condition, call for medical assistance, administer CPR
or do anything else to help, disregarded the risk facing [him]
in a way that exceeded gross negligence.”); Tlamka v. Serrell,
244 F.3d 628, 633 (8th Cir. 2001) (“[F]ailure to act given the
patent nature of [the inmate’s] condition, considering the
officers’ ability to provide CPR, is conduct sufficiently severe
to evidence an Eighth Amendment violation.”).
This court has previously held that officers’ actions in
failing to administer CPR to a prisoner did not necessarily
amount to deliberate indifference. In Cartwright v. City of
Concord, 856 F.2d 1437 (9th Cir. 1988), a pretrial detainee
committed suicide while in city custody. Plaintiffs sued the
officers and the city, arguing that the officers should have
administered CPR during the five to seven minutes it took for
the ambulance to arrive. Id. at 1438. We held that the officers
were not deliberately indifferent because their “actions during
the few intervening minutes between discovery of Cartwright
– cutting him down, checking his vital signs, giving him aid
– and the arrival of the emergency medical crews was not
deficient.” Id. (internal quotation marks omitted); see also
Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir.
1986) (“We have found no authority suggesting that the due
process clause established an affirmative duty on the part of
police officers to render CPR in any and all circumstances.”).
The facts in the present case differ from those in
Cartwright and Maddox, however. According to Plaintiffs’
version of facts, Cahoon and Holliday did not fail to provide
CPR because they were busy with other tasks. Instead, they
allegedly took no life saving action while waiting for MTA
Hak to arrive. While the failure to provide CPR to a prisoner
in need does not create an automatic basis for liability in all
circumstances, a trier of fact could conclude that, looking at
LEMIRE V . CAL. DEP’T OF CORR. 37
the full context of the situation, officers trained to administer
CPR who nonetheless did not do so despite an obvious need
demonstrated the deliberate indifference required for an
Eighth Amendment claim.
b. MTA Hak
MTA Hak was the first medical staff member at the
scene. Arriving at St. Jovite’s cell at 3:45 p.m., she testified
that she checked for a pulse, observed that St. Jovite was
purplish in color and that his feet were cold, and believed that
he had gone into rigor mortis. MTA Hak then began applying
an AED on St. Jovite when RN Hill arrived. The AED
produced a flat line, and MTA Hak stepped aside to allow RN
Hill to examine St. Jovite. RN Hill noted that St. Jovite had
a purplish color on his face, chest, and right shoulder, found
no pulse, and noted that his eyes were dilated. MTA Hak
testified that according to these assessments, neither she nor
RN Hill provided CPR because they believed St. Jovite
beyond resuscitation. While this Court has held that it “may
not affirm [a] district court’s grant of summary judgment
simply on the basis of the defendants’ assertions as to their
own state of mind,” Conn, 591 F.3d at 1097 (quoting Farmer,
511 U.S. at 842), Plaintiffs have provided no evidence to
contradict MTA Hak’s statement that she believed St. Jovite
could not be revived through CPR. Further, when MTA Hak
arrived at the scene at 3:45 p.m., she did begin a medical
assessment, which was still in progress when RN Hill arrived
at approximately 3:48 p.m. This factual scenario is similar to
that in Cartwright. MTA Hak’s actions during the
approximately three minutes between her arrival at the scene
and the arrival of RN Hill, which included checking for a
pulse, observing St. Jovite’s physical appearance, and
38 LEMIRE V . CAL. DEP’T OF CORR.
applying an AED, did not constitute deliberate indifference
to St. Jovite’s condition. See Cartwright, 856 F.2d at 1438.
c. Wade, Alcaraz, Wong, Martinez, and Orrick
Plaintiffs argue that Defendants Wade, Alcaraz, Wong,
Martinez, and Orrick, all of whom arrived after the first
medical staff responded to the scene, acted with deliberate
indifference because they violated the Dovey Memo, which
required them to perform CPR and, although medical staff
were to take primary responsibility, “[b]oth custody and
medical personnel [were] responsible to continue life saving
efforts in unison as long as necessary.” Plaintiffs contend that
whether the decision to defer to medical staff was reasonable
is a question of fact for the jury. Nothing in the record,
however, supports a claim that Wade, Alcaraz, Wong,
Martinez, or Orrick “were (a) subjectively aware of the
serious medical need and (b) failed to adequately respond.”
Conn, 591 F.3d at 1096. Instead, these Defendants were
performing other functions, such as securing the scene or
documenting the incident, that were reasonable in light of the
fact that medical personnel were actively assessing St.
Jovite’s medical situation. It is not clear that their actions
violated the CPR policy, but even if they did, the violations
were not of a type that would tend to demonstrate deliberate
indifference because they were reasonably relying on the
actions of the medical responders who were already treating
St. Jovite. We affirm the district court’s grant of summary
judgment as to these Defendants on the claim stemming from
a failure to administer CPR. Wade, Alcaraz, Wong, Martinez,
and Orrick did not act with deliberate indifference toward St.
Jovite as they reasonably relied on the expertise of the
prison’s medical staff. See, e.g., Johnson v. Doughty,
433 F.3d 1001, 1010–11 (7th Cir. 2006).
LEMIRE V . CAL. DEP’T OF CORR. 39
3. Causation
We analyze causation only with respect to Defendants
Cahoon and Holliday in light of our holding that they are the
only defendants that a jury could find to have been
deliberately indifferent to St. Jovite’s medical situation.
Defendants argue that Plaintiffs have failed to establish that
St. Jovite would have benefitted or survived if he had been
provided CPR by one of the CSP-Solano officers. Three of
the medical staff that arrived on the scene – MTA Hak,
Noriega, and Hicks – determined that St. Jovite was beyond
resuscitation.
Viewing the evidence in the light most favorable to
Plaintiffs, however, a jury could reasonably determine that St.
Jovite was alive and capable of being revived if CPR had
been timely provided by Cahoon and Holliday. First, when
the Vaca Valley Hospital paramedics arrived over twenty
minutes after St. Jovite was discovered by Cahoon and
Holliday, they immediately administered CPR, and continued
to do so for almost twenty minutes before he was pronounced
dead. A jury could conclude that, if the paramedics believed
something could be done so long after St. Jovite was found
unconscious and not breathing, starting CPR earlier might
have had a benefit. Second, SRN Hicks testified that St.
Jovite could have died any time between six and thirty
minutes prior to the time she evaluated him. This suggests
that if Cahoon or Holliday had started CPR immediately,
which would have been anywhere between five to twenty-five
minutes before SRN Hicks arrived at the scene, St. Jovite
would not have been beyond revival at the time and therefore
might have survived. Drawing all reasonable inferences in
Plaintiffs’ favor, a jury could conclude that had Cahoon and
40 LEMIRE V . CAL. DEP’T OF CORR.
Holliday provided CPR immediately, St. Jovite might have
survived.
We therefore conclude that summary judgment should not
have been granted with respect to the alleged failure of
Defendants Cahoon and Holliday to provide medical care, but
we affirm the grant of summary judgment as to all other
Defendants on the medical care claims. Because there is a
triable issue of fact as to whether Cahoon and Holliday were
deliberately indifferent in failing to administer CPR and as to
whether their failure to do so caused St. Jovite’s death, there
is also a triable issue of fact as to whether their actions rose
to the conscience-shocking level required for a Fourteenth
Amendment substantive due process violation. Lewis,
523 U.S. at 849–50.
C. Failure to Train Staff
Plaintiffs allege that Carey and Tranquina should be held
liable as supervisors for failing to properly implement and
train the staff on the CPR policy. Plaintiffs note that MTA
Hak and RN Hill had not been trained on the CPR policy, and
that the custody officers were not aware of the requirement to
work in unison with medical staff in providing CPR, as
opposed to deferring to medical staff.
As noted above, a prison official in a supervisory position
may be held liable under § 1983 if he was personally
involved in the constitutional deprivation or a sufficient
causal connection exists between his unlawful conduct and
the constitutional violation. Lolli, 351 F.3d at 418. This
causal connection can include: “1) [the supervisor’s] own
culpable action or inaction in the training, supervision, or
control of subordinates; 2) their acquiescence in the
LEMIRE V . CAL. DEP’T OF CORR. 41
constitutional deprivation of which a complaint is made; or 3)
[their] conduct that showed a reckless or callous indifference
to the rights of others.” Cunningham, 229 F.3d at 1292; see
Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011). “The
requisite causal connection can be established by setting in
motion a series of acts by others, or by knowingly refusing to
terminate a series of acts by others, which the supervisor
knew or should have known would cause others to inflict a
constitutional injury.” Starr, 652 F.3d at 1207–08 (internal
quotation marks, alterations, and citations omitted).
Here, the evidence is undisputed that Carey and
Tranquina complied with the order in Coleman and
implemented a CPR policy at CSP-Solano. Plaintiffs have
presented no evidence that either Carey or Tranquina were on
notice that staff at CSP-Solano were not complying with the
CPR policy, or that some staff were unaware of the policy.
While at least two staff members, MTA Hak and RN Hill,
were not trained on the policy until a day after St. Jovite died,
there is no evidence that Carey or Tranquina knew or had
reason to know of this lapse. See Farmer, 511 U.S. at 841(supervisors liable only if on actual or constructive notice of
the need to train).
Plaintiffs also argue that the training provided was
deficient because it allowed custody staff to acquiesce to
medical staff once on the scene. Plaintiffs have offered no
evidence, however, that this interpretation of the Dovey
Memo is impermissible. Nor do they show that Carey was
deliberately indifferent in interpreting the policy in that way,
requiring custodial staff to provide CPR to inmates but to
allow medical staff to take primary responsibility once on the
scene. We affirm the grant of summary judgment as to Carey
and Tranquina on the failure to train claims.
42 LEMIRE V . CAL. DEP’T OF CORR.
III. Conclusion
We thus reverse with respect to the claim against
Defendants Sisto and Neuhring for withdrawal of the floor
officers and with respect to the claims based on the failure of
Defendants Cahoon and Holliday to administer CPR. We
conclude that there is a triable issue of fact as to whether
Sisto and Neuhring were deliberately indifferent to St.
Jovite’s safety and welfare when one or both decided to
convene two back-to-back staff meetings resulting in a lack
of supervision in Building 8 for a period of up to three and a
half hours. We also conclude that there is a triable issue of
fact as to whether Cahoon and Holliday were deliberately
indifferent to St. Jovite’s potentially serious medical need
when they failed to administer CPR prior to the arrival of
prison medical staff. We affirm with respect to the remaining
claims and defendants. We therefore vacate the summary
judgment as to the aforementioned claims against Defendants
Sisto, Neuhring, Cahoon, and Holliday, and remand for
further proceedings. The parties will bear their own costs on
appeal.
AFFIRMED in part; VACATED and REMANDED in
part.